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Google and Twitter "Transparency Reports" a Window On Surveillance, and Maybe a Call for Reform

The ever-expanding focus of "transparency reports" released by Google and Twitter are among the best tools available to advocates for reforming electronic privacy laws, Electronic Frontier Foundation activist Trevor Timm said Tuesday.

In a Google report released last week, an update provided Monday, and a similar report from Twitter also released Monday, the companies outlined information on the number of requests by governments for information about users. Both companies say government requests are on the rise. As they increase, both companies are releasing more detailed information about those requests. Beginning with data from January 2011, Google is disclosing the number of individual user accounts about which governments request data. Twitter unveiled a new home for its transparency reports and announced that it would include the nature of requests for information coming from the United States, disclosing the number of subpoenas, court orders, and search warrants.

Twitter reported receiving 815 information requests related to 1,145 accounts in the second half of 2012, and complied in whole or in part with 69 percent of the requests. Google reported that the United States requested information on 14,791 accounts in 8,438 requests for user data in the second half of 2012 and it complied with 88 percent of those orders.

The results reveal a growing interest on the part of the government in the private online lives of Americans. While officials requested data from Google on fewer users in the second half of the year than in the first, the number of requests has increased for both Google and Twitter. These reports also suggest that the United States is the world leader in attempts to access private information about citizens that is stored electronically.

The reports do a third thing, Timm said: They offer a view into what the government is trying to do, and how, that would be totally unavailable were it not for the companies themselves.

"The government is so secretive that the only way we can get this information is through the companies," Timm told techPresident.

As a result, only companies like Google and Facebook are providing the kinds of information that watchdogs and members of Congress need when considering how to reform the Electronic Communications Privacy Act — a law consistently invoked when defining online privacy despite the fact that it is 27 years old and predates the modern Internet.

Companies like Facebook or cellphone carriers should release similar information, he said.

American consumer privacy online hinges in large part on the decisions of private companies. Most larger companies have said they require a warrant to reveal personal data even though the law doesn't require it, Timm said.

That issue has not gone all the way to the Supreme Court, nor has ECPA reform been taken up by the Senate after a reform bill passed the Judiciary Committee last year.

The more information released by the companies, the more information is available for groups who are lobbying Congress to act, Timm said.

"[ECPA] reform would take the uncertainty out of the law," Timm said. That would be of extra benefit to smaller companies who have similarly sensitive user data but don't have the fleet of lawyers that a company like Google can deploy on users' behalf.

Even giants like Google and Twitter find themselves navigating treacherous legal waters. In December, an Occupy Wall Street protester in New York City pleaded guilty to disorderly conduct, paving the way, Reuters reported at the time, for an appeal of a judge's ruling that found he could not challenge the subpoena prosecutors issued to Twitter for his tweets. Who owns a user's tweets informs who has the right to challenge law enforcement when they grab for them. This is an issue internationally as well. In France, a civil court in Paris recently ruled that Twitter must hand over information that could identify people who posted anti-Semitic tweets. It's apparently still an open question whether Twitter, an American company, decides to comply with French law.

These giants are not the only companies who claim the mantle of user privacy, which also limits the amount of time and treasure companies must spend complying with government requests. Writing for Project Disco, Rob Pegoraro noted while Yahoo and Microsoft also said they insisted on warrants, they had not yet made this clear publicly or to the average user.

He also writes that law enforcement requests for information are often inaccurate themselves.

"I can’t tell you how many subpoenas we get for Facebook," he quotes Richard Salgado, who directs law enforcement and information security for Google, as saying.

In a blog post, Carly Nyst, head of international advocacy for U.K. based Privacy International, noted that her group is working with other NGOs to draft a set of International Principles on Surveillance and Human Rights as part of its efforts to encourage governments around the world to change their legal processes to protect individuals' right to privacy.

Speaking in Sydney Tuesday about Australian plans to monitor Internet communications, Sir Tim Berners-Lee, who invented the World Wide Web, warned that it was certain to capture a high volume of trivial infractions by everyday people while serious criminals went free.

"The whole thing seems to me fraught with massive dangers," The Age quotes Sir Tim as saying, "and I don't think it's a good idea.”

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